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OSHA Recordables Relative to the COVID-19 Vaccine

The Occupational Safety and Health Administration (OSHA) has provided guidance to employers regarding recordables related to the COVID-19 vaccine. OSHA outlined when an employer is required to record an adverse reaction on its OSHA 300 Logs.In their document, COVID 19 – frequently asked questions (FAQs) issued on April 20, 2021, OSHA states that recordables incidents are based on whether the vaccine is required or recommended by the employer. The document identifies that while adverse reactions to required and recommended vaccinations may be recordable; OSHA is only requiring the recording of adverse effects to required vaccines.
According to the guidance document, an adverse reaction to a vaccine may be recordable if it is “work-related,” a “new case” (as opposed to a condition resulting from a previous work-related illness), and one of the recording criteria, such as days away from work. The following was issued by OSHA to provide clarity to employers as it related to COVID-19 vaccinations:
  • Are adverse reactions to the COVID-19 vaccinations recordable on the OSHA recordkeeping Log? In general, an adverse reaction to the COVID-19 vaccine is recordable if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, medical treatment beyond first aid).
  • If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable? If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.
  • I do not require my employees to get the COVID-19 vaccine. However, I do recommend that they receive the vaccine and may provide it to them or make arrangements for them to receive it offsite. If an employee has an adverse reaction to the vaccine, am I required to record it? No. Although adverse reactions to recommended COVID-19 vaccines may be recordable under 29 CFR 1904.4(a) if the reaction is: (1) work-related, (2) a new case, and (3) meets one or more of the general recording criteria in 29 CFR 1904.7, OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time. Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do not require.
  • Note that for this discretion to apply, the vaccine must be truly voluntary. For example, an employee’s choice to accept or reject the vaccine cannot affect their performance rating or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice. If employees are not free to choose whether or not to receive the vaccine without fearing adverse action, then the vaccine is not merely “recommended” and employers should consult the above FAQ regarding COVID-19 vaccines that are a condition of employment.
  • Note also that the exercise of this discretion is intended only to provide clarity to the public regarding OSHA’s expectations as to the recording of adverse effects during the health emergency; it does not change any of employers’ other responsibilities under OSHA’s recordkeeping regulations or any of OSHA’s interpretations of those regulations.
  • Finally, note that this answer applies to a variety of scenarios where employers recommend, but do not require vaccines, including where the employer makes the COVID-19 vaccine available to employees at work, where the employer makes arrangements for employees to receive the vaccine at an offsite location (e.g., pharmacy, hospital, local health department, etc.), and where the employer offer the vaccine as part of a voluntary health and wellness program at my workplace. In other words, the method by which employees might receive a recommended vaccine does not matter for the sake of this question.
Due to this recent development concerning vaccines and recordables, employers need to evaluate their policy as it relates to COVID-19 vaccinations. If your company is not mandating vaccines and it is purely on a voluntary basis, clearly define that and communicate that to your workforce.  AGC NYS and AGC of America are seeking clarification relative to vaccination requirements placed by clients that only vaccinated workers may work on that particular jobsite. The guidance document can be accessed here.


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